Will Apple's new gizmo really go on sale as the 'iPhone'?

If it reaches a court, even a judge might have to flip a coin on this one. You never would have thought that people went into the world of trademark law to live on the edge amid a swirl of stories and rumours, but that's been the tale of the "iPhone" ever since Steve Jobs uttered the word on Tuesday last week in San Francisco.

People were stunned partly because the subject had been researched to death, and all the trademark databases suggested that Linksys, and its subsequent parent Cisco, filed for the "iPhone" name some time ago - 1996 in the US. (Have a look on uspto.gov under "Trademarks".) And generally, with trademarks, the first one in wins.

Talks between the two companies which would have ceremonially handed the iPhone name over to Apple stalled the night before Jobs's speech because Cisco wanted to work with Apple on "interoperability". Quite why Jobs found this unpalatable isn't clear, but perhaps that's why he paused perhaps a touch longer than usual when next day he said "And we're calling it ..."

Apple subsequently suggested there was no trademark overlap, because it is the only one using it for a mobile phone. Unfortunately, its description of the trademark's use contains the phrase "computer hardware and software for providing integrated telephone communication with computerized global information networks" - identical to Cisco's.

But wait! To retain a trademark, you must use it. Cisco had six months to use or lose "iPhone", at least in the US, last May; it put out a product in December, seven months later. Could Apple squeeze in? Stay tuned! But in Canada, Toronto's Comwave has had an "iPhone" since 2004. Never mind, Steve: we hear "iPod Phone" is still free.

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